The opinion of the court was delivered by: DENISE COTE, District Judge
On November 24, 2003, Sharon Niven ("Niven") filed this action
pursuant to the Social Security Act, 42 U.S.C. § 405(g), to
obtain review of the final decision of the Commissioner of Social
Security ("Commissioner") denying her application for disability
benefits. Niven has moved for judgment on the pleadings arguing
that she is unable to perform even sedentary work and asking that
the Commissioner's decision be reversed, or that the action be
remanded for a new hearing. The Commissioner has cross-moved for
judgment on the pleadings. For the reasons that follow, the
decision of the Commissioner is affirmed.
The following facts are taken from the administrative record.
Niven was born June 30, 1956 and was 44 years olds at the alleged
onset of her disability. She has a high school education and is
the mother of two children. Niven worked as a bartender, which
required the ability to stand for long periods of time and
minimal lifting, until 1999 when the restaurant where she worked
closed. Niven states that she did not seek further employment
because of her back pain.
Overview of Application History
On February 7, 2002, Niven submitted an application for
disability benefits and Supplementary Security Income to the
Social Security Administration. Niven asserted that she had been
disabled since March 1, 2001, due to back pain, migraine
headaches and depression. The applications were denied and Niven
filed a timely Request for Hearing. Niven appeared before
Administrative Judge Newton Greenberg ("ALJ") on February 24,
2003. On April 16, 2003, the ALJ determined that Niven was able
to "sit for 6 hours, stand for 2 hours and lift up to 10 pounds."
The ALJ found, inter alia, that
Medical evidence establishes that claimant is
diagnosed with findings consistent with discogenic
disorder of the lumbosacral spine and rule-out major
depressive episode in partial remission,*fn1 but
that she does not have an impairment or combination
of impairments listed
in, or medically equal to one listed in Appendix 1,
Subpart P, Regulations No. 4.*fn2 . . .
The claimant's statements regarding the severity of
the alleged symptoms and degree of functional
limitations are not credible. . . .
There is sufficient evidence to support the findings
regarding the claimant's residual functional capacity
at step five.*fn3 . . .
The claimant has mild limitation in activities of
daily living; no limitation in social functioning;
mild limitation in concentration, persistence or
pace; and no documented episode of decompensation.
The ALJ concluded that Niven was not disabled and "retains the
residual functional capacity for unskilled, sedentary work." In
July 2003, the Appeals Council denied Niven's request for review
and the ALJ's decision became final.
Niven's relevant medical history begins in June 2001, when she
underwent an initial psychological assessment at the Bellevue
Hospital Center ("Bellevue") for complaints of depression that
surfaced after her husband left her and her three-year old son.
An examination of June 21 and 28 showed that the plaintiff was
cooperative and well-groomed. Her thought process and thought
content were within normal limits. While Niven did not have any
suicidal ideation, her mood was depressed. Niven told the
examiner that she had been feeling better, but complained of
recent stress after a welfare agency visit. The examiner's
diagnosis was: Axis I major depression episode, rule out
adjustment disorder; Axis II deferred; Axis III none; Axis IV
unemployment; and Axis V 60.*fn4
Niven again sought medical attention on July 19, 2001, where
she reported that she was presently taking Celexa and was
experiencing "minor" back pain. The examining physician's
assessment was that she was suffering from anxiety, a migraine,
and a urinary tract infection.
Throughout 2001, Niven continued to seek medical treatment at
Bellevue. On August 6, 2001, Niven reported increased lower back
pain and depression, but that she was taking Celexa which gave
her some relief from her depression. There was no evidence of
bruises or trauma, no sensory deficit to the lower extremities,
and strength and flexibility were normal. The physician's
assessment was low back pain, questionably due to old trauma.
Valium and Motrin were prescribed. On August 22, 2001, Niven
returned to Bellevue complaining of severe left flank pain which
was likely due to a kidney stone. A lumbar spine x-ray was within
normal limits. On September 10, 2001, a CT-scan revealed no
evidence of a kidney stone, and Niven told her physician that her
subsided and she was able to tolerate her present discomfort
without medication. She walked without discomfort and no deficit
was observed in her gait.
On October 19, Niven was assessed at Bellevue's pain treatment
center. While Niven stated that she was not working because of
"severe depression" and that walking or sitting in one position
exacerbated her lower back pain, she indicated that she was able
to perform activities of daily living and that she had a good
response to Tylenol with codeine and hot showers. An examination
revealed no reflex abnormalities or loss of motor function. Niven
was diagnosed with lower back pain and referred to physical
On November 2, Niven was seen at Bellevue's rehabilitation
medicine service. Niven complained of back tenderness that was
exacerbated by sitting and walking. She was found to have tight
hamstrings and generalized palpable tenderness in the lumbar
spine area. Niven performed a straight leg test normally and her
lower extremities had normal strength. Niven was again diagnosed
with lower back pain and the attending physician prescribed
In an examination on November 5, 2001, a consulting physician,
Dr. Clyde Weissbart concluded that Niven was able to perform
sedentary activity with moderate limitations in activities
involving sitting, standing, walking and lifting. On November 8,
Niven was diagnosed with, among other things, low pack pain,
anxiety, and depressive disorder. During an examination on
December 10, 2001, Niven remarked that rehabilitation was helping
a lot, her condition was "much improved," and she was "happy."
Niven was seen again at Bellevue's pain clinic on December 14,
where she reported that therapy was helping, but she was still
experiencing intermittent left, low back pain. During an
examination two weeks later, Niven reported that her back
discomfort increased with activity. She ...